UNION OF INDIA (UOI) Vs. BURMA NAND

JUDGEMENT

(1.) THIS petition under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India seeks the revision of an order dated 2nd of November, 1972, passed by Shri I.P. Anand, Subordinate Judge 1st Class, Ambala City, deciding a preliminary issue arising in a suit for declaration.

(2.) CERTAIN facts are not, disputed and may be stated here. Plaintiff Burma Nand, who is the Respondent before me, joined the Jagadhri Railway Workshop as a Skilled Fitter on the 2nd of January, 1953. He continued to work in that capacity till 19th of August, 1968, when he was charged with serious misconduct. Ultimately, the Works Manager, Jagadhri Railway Workshop, removed him from service through an office memorandum, dated the 24th of February, 1969. He filed an appeal, but the same was rejected by the Appellate Authority on the 31st of July, 1969. In his suit the Plaintiff has challenged the order of his removal from service as being violative of the provisions of Article 311 of the Constitution, of India and of the statutory rules regulating the conditions of his service. The prayer made in the suit, which was instituted on 10th of March, 1972, is that "a declaration to. the effect that the Plaintiff shall be deemed to be still in service as Skilled Fitter in Railway Workshop, Jagadhri, as order of his removal, dated 24th February, 1969 passed by the Works Manager, Jagadhri Workshop, and his rejection of appeal by the Appellate Authority, dated 31st July, 1969 are illegal, void, inoperative and are not binding on Plaintiff or any other relief this learned court deems fit be accorded."

(3.) MR . R.L. Garg, learned Counsel for the Petitioner, has frankly and very rightly conceded before me that no question of the application of Rule 2 of Order II of the Code of Civil Procedure arises in the present case because that rule merely lays down that if a Plaintiff does not seek the entire relief to which he is entitled in respect of a cause of action on which, he sues, he shall not later on sue for the relinquished relief without the leave of the Court. Now, if the relief for arrears of pay flows from the same cause of action which is the basis of the claim for the declaratory relief, the provisions of Rule 2 shall come into operation if and when the Plaintiff subsequently brings a suit for recovery of the said arrears, a relief which he has not now claimed. So long as the Plaintiff does not bring such a second suit the applicability of Rule 2 is not attracted and it cannot, therefore, be said to bar the present suit in any manner.